Skip to main content

As Native Title claims are determined, compensation becomes the next step for Traditional Owners, should they choose to pursue it.

Native Title Holders are entitled to compensation for activities which diminish or damage their native title rights and interests (Native Title Act 1993 (Cth) s 51(1) (NTA)).

This includes the grant of tenure to third parties (eg leases) and acts or activities on those tenure. These are known as Compensable Acts.
Compensation is payable for acts which occurred on or after 31 October 1975 when the Racial Discrimination Act 1975 (Cth) (RDA) came into effect. The RDA does not allow for discrimination on the basis of race, colour, descent or national or ethnic origin (RDA s 10(1)). This means laws cannot be made which are discriminatory against Native Title Holders. 

Case examples in Australia

The first native title compensation settlement in Australia was Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900 (Griffiths). This case provided the first guidance on how to calculate compensation.
Central Desert has worked with clients on the first compensation cases in Western Australia, which are also “firsts” in Australia for the precedents they have set.

The Pila Nature Reserve 

The Pila Nature Reserve native title claim (June 2022) was the first claim filed and determined in Australia under section 47C of the Native Title Act 1993 (Cth).

The Native Title Legislation Amendment Act 2021 amends the Native Title Act 1993 (Cth) by including a new provision, section 47C, which enables state governments and native title holders to agree to disregard prior extinguishment, and confirm recognition, of native title over park areas.

The Agreement sees the Reserve jointly vested and managed by the Warnpurru Aboriginal Corporation and the Conservation and Parks Commission under the Conservation and Land Management Act, providing economic, social and cultural benefits for Aboriginal communities in the area.

See media release for more details

The Tjiwarl ILUA compensation claim

The Tjiwarl ILUA compensation claim has set a new national standard for compensation settlements.

The Palyakuwa (agreement) which came into effect on 22 May 2023, is the first time that Native Title Act processes are being applied and adapted specifically to the relationship between a native title group and a State or Territory.

Some inclusions are –

  • A sizeable cash component,
  • parcels of land are being returned to Tjiwarl where native title had previously been extinguished,
  • creation of conservation estates.
  • special conditions for third parties to abide by over areas of cultural importance,
  • Tjiwarl standard agreements are recognised
  • consultation rights and ability to influence how water is used on country.

See media release for more details

Kulyakartu Aboriginal Corporation begin Compensation journey.

See story for more details here